One of the more frustrating aspects of defending power tool cases occurs during the deposition of the plaintiff – at the point where he attempts to describe in minute detail how his accident happened. Then, at trial, just when you think you have the plaintiff “nailed down” to a specific accident scenario, his testimony seems to describe a completely different event. With enough wiggle room in his testimony, a well-coached plaintiff can describe his accident almost any way he wants to support his overall claim of product defect.
Enter the accident demonstration video recorded during the plaintiff’s deposition!!
The Federal Rules explicitly provide for video (audiovisual) recording of the plaintiff’s deposition [Fed. R. Civ. P. 30(b)(3)], but are silent as to whether a defendant may require a plaintiff to demonstrate during the deposition how his accident occurred. Nevertheless, a strong argument can be made that the broad scope of discovery allowed by the Rules indisputably permits accident demonstrations during the video-recorded deposition of the plaintiff.
The scope of permissible discovery in federal court is broadly interpreted. In fact, under FRCP Rule 26(b)(1), “relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The manner in which an accident occurred is, without a doubt, relevant to all claims and defenses made by the parties to an action and would seem to come within the scope of discoverable information as allowed by the Federal Rules. In fact, federal courts throughout the United States have overwhelmingly supported demands made by defendants to have plaintiffs demonstrate their accident during video-recorded depositions. There is a plethora of decisions responding to objections raised by plaintiffs to requests for accident demonstrations during video-recorded depositions. In these cases, the courts have recognized the value of such demonstrations and have allowed or outright compelled them to proceed. Courts throughout the country have especially noted the importance of such demonstrations where the complex details of the accident could not be properly described verbally and through mere stenographic means. [See, for example, Roberts v. Homelite Div. of Textron, Inc., 109 F.R.D. 664 (N.D. Ind. 1986); Emerson Electric Co. v. Superior Court, 946 P. 2d 841 (Cal. 1997); Carson v. Burlington Northern, Inc., 52 F.R.D. 492 (D. Neb. 1971)].
There are obvious advantages to having the plaintiff demonstrate his accident during a video-recorded deposition. First, it serves to pin down the plaintiff to a specific accident scenario he can’t change at trial without the jury seeing the discrepancy. From there, trial preparation and case analysis become easier and more certain. Second, the defense expert will have more information to analyze the true cause of the plaintiff’s accident, instead of having to rely on a vague verbal description given during the deposition without any visual points of reference. In the end, justice is achieved through a greater and clearer understanding of the accident, which means a more informed strategic decision can be made by the defendant as to the strength of the plaintiff’s product defect claim.
Plaintiffs’ attorneys know these advantages and, for that reason, often object vigorously to the idea of a video-recorded demonstration of their clients’ accident, sometimes to the point where motion practice, or at least a hearing before a magistrate, is required. Use that opportunity to assure the plaintiff’s attorney and the court that the exemplar power tool will not be plugged in and that the whole exercise is simply being done to have the plaintiff provide a visual demonstration of where he was standing, how he was standing, the positioning of his body and hands, the height of the saw blade, etc. [Try to avoid the word “reenactment,” which suggests that there will be a greater chance that the plaintiff will get hurt; instead, use the word “demonstration,” which is more accurate.] Assure the plaintiff’s attorney and the court that there will be no danger to the plaintiff and that the entire exercise will take no more than 10 minutes. Tell the plaintiff’s attorney that he can put all the objections on the record that he wants and further assure the court that, by allowing the video-recorded demonstration during the deposition, the plaintiff is not conceding the admissibility of the video and arguments over actual admissibility can take place down the road. With these arguments, and taking advantage of the broad scope of the Federal Rules, it is likely the judge will approve the request.
It is often said that a picture paints a thousand words. In the context of products liability litigation, a video-recorded accident demonstration is like a Rembrandt!
This blog is adapted from an article entitled “A Picture Paints a Thousand Words” in the Spring 2015 issue of Litigation Magazine.